We have a situation here
arising in Cuyahoga County, Ohio. The defendant-appellant in this case was
living in a residential neighborhood, owned her own home, and living there in a
two-family house on the second floor, having rented the first floor to another
tenant. She lived there with a daughter approximately eleven years of age. The evidence
in this case disclosed that she is a woman without any record whatsoever from
the criminal point of view—a decent, respectable American citizen.

One day these police
officers of the City of Cleveland, three in number—and the record sets forth
the occurrence came to the house and wanted to be admitted for the purpose of
making a search. When they rapped at the door or rang the bell, she looked out
the window and asked them what they wanted. And they said that they wanted to
search the house.

THE COURT: What time of the
day was this, day or night?

MR. KEARNS: In the daytime.

THE COURT: On a weekday? On
a weekday in the daytime?

MR. KEARNS: Weekday, yes.

And she said that she would
call her lawyer and see what he said. Now, the evidence discloses that the
police officers claimed that they were informed that there was some
paraphernalia for the numbers game in the house, and they were also informed
that a person wanted for questioning in a bombing was in the house.

She
called her lawyer, Mr. Greene, who is my associate; and he said to her: If they
have a search warrant, you permit them in to the house. So she told them that
they’d have to have a search warrant.

One
of the police officers then called his chief, a Lieutenant Cooney, and told him
he couldn’t get into the house because she required a search warrant. And
within a few minutes thereafter — several zone cars with many police officers
surrounded the house. Then, the evidence discloses, at least two of the police
officers who knew—one was Sergeant Delau—knew what he was there for, but made
no effort to procure a search warrant. Neither one of them did. But they
testified that a search warrant was procured by a Lieutenant White.

Now,
they didn’t know about it. The evidence discloses that they were told that a
search warrant had been procured.

When they came to the house
with the search warrant—or I supposed search warrant—by the time they arrived,
Mr. Greene I was also there.

THE COURT: You say
“supposed search warrant”?

MR. KEARNS: There was no
search warrant, Your Honor. I intend to go to that from the evidence as we
proceed.

This Lieutenant White came
and showed a piece of paper, and Mrs. Mapp demanded to see the paper and to
read it, see what it was, which they refused to do, so she grabbed it out of
his hand to look at it. And then a scuffle started, and she put this piece of
paper into her bosom. And, very readily the police officer put his hands into
her bosom and removed the paper, and thereafter, thereafter handcuffed her
while the police officers started to search the house.

Now, the evidence in the
case discloses that the State claims there were only seven police officers,
some in uniform. Mr. Greene, who was there and was not permitted entrance to
the house, but who was kept outside, says there were approximately twelve
police officers in all.

Now,
the evidence discloses that no search warrant existed although they claimed
there was a search warrant. There is absolutely no evidence of any magistrate
that had been asked for a search warrant; there was no record of a search
warrant. We asked during the trial of the case that the search warrant be
produced and it was not. The fact of the matter is that our own supreme court
found that it was very questionable as to whether there was a search warrant in
this case.

THE COURT: What was the
piece of paper? Did that get identified?

MR. KEARNS: We don’t know
what it was. She was not given an opportunity to read it. She doesn’t know what
it was. It was a piece of white paper. But the police officers never produced
it, because, as a matter of fact, if it please Your Honors, I waited in the
trial of the case for Lieutenant White, who was supposed to be the man who
procured the search warrant, to take the stand so that at least I could
cross-examine him as to where, when and how he procured the search warrant and
what the search warrant contained. But the State was clever enough not to put
him on the stand; and no other police officer knew anything about it.

THE COURT: You couldn’t
have called him?

MR. KEARNS: If I called
him, Your Honor, I would have made him my witness.

THE COURT: I know, but
hostile witnesses - one has freedom with a hostile witness.

MR. KEARNS: I agree, we
have freedom with hostile witnesses. But I’ve been practicing criminal law for
a number of years, and I know what a police officer of experience can do to you
if you’re not careful, as far as a jury is concerned.

THE COURT: Anyhow, you
didn’t call him.

MR. KEARNS: I did not, I
did not.

But the prosecutor
promised—and we have the prosecutor here—that the search warrant would be
produced, and it never was. So the situation is that the home was entered, the
place was searched from cellar to roof by all these police officers. They found
some paraphernalia in the basement pertaining to some lottery, belonging -
later it developed to someone else, the tenant downstairs, and she was tried
for that and was acquitted. And following the acquittal as to the
paraphernalia, she was then arrested and tried for having in her possession
obscene literature.

THE COURT: Tried and
acquitted of what charge?

MR. KEARNS: Of having in
her possession policy paraphernalia.

THE COURT: And was the—

MR. KEARNS: It was in the
basement in a trunk.

THE COURT: And was the
trial for possession of obscene literature the same day, immediately following?

MR. KEARNS: Oh, no.

THE COURT: I see.

MR. KEARNS: Later, and in
an entirely different court.

THE COURT: Was the
prosecution by information or indictment or what?

MR. KEARNS: The prosecution
for the literature was by indictment, whereas the prosecution for the
paraphernalia in the gambling transaction was by affidavit.

THE COURT: How much time
elapsed between the two trials?

MR. KEARNS: If I recall
correctly, there was almost a year.

THE COURT: And had the
indictment for possession of the obscene literature been voted before the trial
on the other?

MR. KEARNS: No, after.

THE COURT: After.

MR. KEARNS: After.

THE COURT: Different
courts?

MR. KEARNS: Different courts.
This was the Court of Common Pleas, and the other was a misdemeanor so it was
tried in the Police Court.

THE COURT: Well, was the
obscene literature taken in the same search—

MR. KEARNS: Same search.

THE COURT: —as the policy
materials?

MR. KEARNS: Yes, Your
Honor; the same search, at the same time.

Now—

THE COURT: From the same
trunk?

MR. KEARNS: Well, parts of
the same trunk, we claim. The evidence, of course, was this: They claim, the
police officers claim that they found some of this literature, a book or two,
in the dresser drawer of her bedroom. They found some literature, they claimed,
in the room.

We say that she had a
roomer in the house, a man by the name of Jones. He had occupied that room. He
had moved and left. And she had corroborating testimony to that effect. He had
moved and left, and left some of his clothes and these things, including a .22
caliber revolver, in the room. And when she discovered that he wasn’t coming
back within the week or two weeks, not knowing whether he was going to return
or not, she started cleaning out the room in order to put his things away
should he call for them or send for them, because his room was paid to the
balance, to the end of the month. She wanted to clean the room out so that she
could give the room to her daughter.

And
the situation was that, while she was cleaning this room, she found these
things, a couple of books and so on, together with some of his clothes, in the
dresser drawer. Her testimony, and the testimony of her corroborating witness,
was that they took these things out of the drawer. And these particular books,
the obscene literature was in a brown envelope—a paper bag—and that when they
took these things out they saw what it was, and she said to the girl that was
helping her: Look at what terrible things men read. Let’s put it away.

So
that they took these things and put it in a brown box—a small brown
box—together with his socks and a hat and things of that sort, and put it in
the basement.

But
the police officers deny that they found these things in the basement. They
said they found them all in the room. And, as a matter of fact, the evidence
shows—and the record is here—that they even denied that there was a pistol
there; then later the other police officer says: Yes, there was. So they didn’t
agree on their testimony at all.

However,
she did explain to them and Sergeant—Mr. Haney, who was the first witness,
denied that she said that these things belonged to a roomer that formerly had
had this room. Whereas Sergeant Delau—and the record so shows—testified that
she did tell him that, and that she was keeping these things for the man when
he came for his goods.

Then
following that, of course, she was charged and she was tried before a jury.
Now, the question came up in the trial of this cause, this being a
comparatively new statute in Ohio—the statute in itself merely says: ‘‘Whoever
knowingly has in his possession,” and goes on to say, “pornographic literature,
even stories of crime, is guilty under this statute.” Now, the purpose, the
reason for having it in the possession, as one of the judges of our own supreme
court asked: What do you say, we have it here? And I said: You’re guilty. No
question about it. Because the statute does not differentiate for any purpose
of having anything in your possession, knowingly having in your possession. And
the court charged the jury that under the statute she knew it was there, and
knowing that it was there, she had it knowingly in her possession.
Consequently, he practically charged that she was guilty. And his charge so
showed.

THE COURT: Was this without
reference to whether the possession was in the room or the cellar?

MR. KEARNS: Without
reference. As long as she had it in her possession.

THE COURT: Even if in the
cellar?

MR. KEARNS: Even if in the
cellar, because she testified that they carried it down to the cellar. So, she
had it in her possession.

THE COURT: Did the judge
require the jury to distinguish, though, or to find that the goods were in the
room?

MR. KEARNS: No, he didn’t.

THE COURT: He did not?

MR. KEARNS: He did not. He
merely said that if, for any reason, even— He even went far enough to say that
if a person has things like this in their possession and conceals them they’re
still guilty, because if they find that these things were concealed because
some of it was in a suitcase under the bed, together with some of the man’s
clothing and socks and things of that sort that she had put away for him as she
found them in the drawer.

THE COURT: Mr. Kearns.

MR. KEARNS: Yes, Your
Honor.

THE COURT: May I trouble
you to tell us what you deem to be the questions that are open before this
Court? And I’ll tell you why I ask that question: Unless you correct me, I
assume it is still the law of Ohio that the decision of your supreme court is
what is contained in the syllabus. Is that still the law?

MR. KEARNS: The Rochin case, yes, sir.

THE COURT: Is that still
the law of Ohio?

MR. KEARNS: Yes, sir;
that’s still the law of Ohio.

THE COURT: Therefore, in
going to the syllabi, I find that the court hasn’t decided questions of
evidence or the charge, et cetera, et cetera. It decided only questions of the
constitutionality of the statute.

MR. KEARNS: That’s what
they decided. That’s what the—

THE COURT: So far as I read
the syllabi, I can’t tell that any of these questions about search and
seizure—no—

MR. KEARNS: Unlawful search
and seizure.

THE COURT: Yes, but not the
charge and not the adequacy of evidence.

MR. KEARNS: No, I don’t
believe we are. All that we’re asking is that we have this Lindway that I’m setting forth in our brief that is controlling the
entire State of Ohio.

THE COURT: And that holds
that, although evidence is illegally procured, it is admissible; right?

MR. KEARNS: That’s right.

THE COURT: And that’s the
familiar doctrine in so many states in this Union, and which we dealt with in
the Wolf case. You don’t even refer
to it in your brief.

MR. KEARNS: Well, we went
through the Wolf case, but we don’t
refer to it here. I think maybe the State got it. But the fact of the matter is
that we are, as citizens of Ohio, deprived of our constitutional rights against
unlawful search and seizure.

Now, may I go on with Judge
Taft’s wording:

Defendant contends that the
due process clause of the Fourteenth Amendment to the Constitution of the
United States was violated by her conviction for possession and control of
these books and pictures, since that conviction was based primarily upon their
unlawful seizure from her during an unlawful search of her home.

There is, in the record,
considerable doubt as to whether there ever was any warrant for the search of
defendant’s home. No warrant was offered in evidence, there was no testimony as
to who issued any warrant or as to what any warrant contained, and the absence
from evidence of any such warrant is not explained or otherwise accounted for
in the record. There is nothing in the record tending to prove or from which an
inference may be drawn, and no one has even suggested that any warrant that we
may assume that there may have been described anything other than policy
paraphernalia as things to be searched for.

Then we speak of our
statute. Section 2933.24 requires a search warrant to particularly describe the
things to be searched for. And 2905.35of
the Revised Code, our Constitution, Section 4 of Article I, specifically
forbids the issuance of any such warrant except upon probable cause, supported
by oath or affirmation particularly describing the place to be searched and
things to be seized.

THE COURT: Mr. Kearns, does
the State contend that there was a valid search warrant here?

MR. KEARNS: I don’t believe
they do, Your Honor, although they speak of it, and they’ve spoken of it in the
Court of Appeals and in the supreme court. But they don’t contend that there
was.

THE COURT: In the Supreme
Court of Ohio is there any basis, even in Judge Taft’s opinion or the others or
the syllabi, that there was a valid search warrant?

MR. KEARNS: No, I just read
you where he says that there is no valid search warrant.

THE COURT: I said the
syllabi. The syllabi says:

A conviction thereunder
[under this statute which you’re attacking] may be valid although that
conviction is based primarily upon the introduction into evidence of lewd and
lascivious books and pictures unlawfully seized during an unlawful search and
seizure.

Do you have to argue
anything when the court itself tells you it decided on the basis of an unlawful
search? Is there anything to be argued about it?

MR. KEARNS: It certainly
is.

THE COURT: I’m not saying,
are they correct in sustaining it, but is the question that there was an
unlawful search, is that in controversy in this case?

MR. KEARNS: No, it isn’t.

THE COURT: All right.

MR. KEARNS: There was an
unlawful search.

THE COURT: Did you raise
the question of no search warrant in the trial court?

MR. KEARNS: I did. I even
filed a motion to suppress the evidence in the trial court, which motion was
overruled.

THE COURT: What was the
response of the prosecution to that?

MR. KEARNS: There is
nothing in the record of any response, nothing. The record shows a motion to
suppress the evidence was filed, was argued for the court, and the court
overruled it. And I’ll say to this Court very honestly, that the court
overruled that because of the Lindway case.
It is the Lindway case that controls
them, because time and again we’ve had the same question in our courts, in
which the court would turn to me and say: Well, Mr. Kearns, can we say anything
about this, since the Lindway case is
still on the books?

THE COURT: And the Lindway case says, conceded that there
was an unlawful search, the fruits of it may nevertheless, if relevant, be
introduced into evidence in trials in your State. Is that it?

MR. KEARNS: That is right,
and if they do not find contraband, then they are liable to a suit for being
trespassers. That’s what the law of the case holds, as far as the case itself
is concerned, because at that time—in 1935, I believe it was—there was this one
man who was making bombs for the union. And so he was convicted, and rightfully
so. And Judge Herbert in his dissenting opinion speaks of that situation.

But
let us look at this other question: Here is a woman who is lawfully in her own
home. She’s not exhibiting anything like this. She’s not trying to sell it.
She’s not doing anything, assuming that they did find it in her home. The
sentence, the sentence imposed upon her is one to seven years, for having
exercising let us say—her right to look at a book that she shouldn’t look at,
to have in her possession a book that she shouldn’t have. Not that she’s a criminal,
not that she has a former record, but one to seven years imposed upon her for
daring to have a book of this sort in her home.

THE COURT: What can we do
about the length of the sentence, if you’re criticizing the length of the
sentence?

MR. KEARNS: Cruel and unusual
punishment, yes. And we cite it in our brief with the constitutional provision.
Isn’t it cruel and unusual, in a matter of this sort?

THE COURT: I may be wrong
about it; you correct me on it. I thought that that phrase, “cruel and
unusual,” related to the character and type of the punishment, and not the
length of it. Am I wrong about that?

MR. KEARNS: Your Honor, the
character and type, you’re right. But in this case the court had the right to
give her a money fine under the same statute, had he seen fit to do so. Now,
where we have a person who commits crime, where we have a person who’s a
criminal and the record so shows, that’s one thing. But here we have an
honest-to-goodness mother of an eleven year old child, living in her own home,
not bothering anybody; and she is not given a fine under this statute. She is
sentenced to seven years in the penitentiary for daring to have this in her
possession.

THE COURT: I thought your
real argument was that that conduct just couldn’t be a crime, and that therefore
this statute’s an unconstitutional one.

MR. KEARNS: That is true.
But I’m assuming for the sake and purpose of the discussion that the books were
there and that this Court may feel that it was a crime. But we do say that this
is not a crime under the factual situation in this case; that she did not
intend to commit a crime; that she did not intend to injure any of the other
citizenry of the State of Ohio.

THE COURT: Assume for the
moment that she was constitutionally convicted, do you still contend that the
punishment is cruel and inhuman?

MR. KEARNS: I do. I do, for
the sake of this discussion, if she was constitutionally convicted. But I say,
of course, that she was not constitutionally convicted.

THE COURT: I understand
that.

MR. KEARNS: And, as I’ll explain,
four judges of the seven found that she was not constitutionally convicted. But
under our particular procedure the Court of Appeals affirmed the lower court,
and where there is an affirmance, then we need six of the seven jurists to hold
this unconstitutional, and we only had four of the seven. That’s the situation
that we’re asking that this Court look into and correct the rights of this
particular individual, this plaintiff—defendant-appellant.

I’m going to give Mr.
Berkman, if the Court will permit me, to say a few words on behalf of the Civil
Liberties Union.

MR. CHIEF JUSTICE WARREN:
You may. Mr. Berkman?

ORAL ARGUMENT OF BERNARD A. BERKMAN, ESQ.,

ON BEHALF OF

THE AMERICAN CIVIL LIBERTIES UNION ET AL.,

AS AMICI
CURIAE,URGING REVERSAL

MR. BERKMAN: Mr. Chief
Justice, may it please the Court:

Before I get into the area
which was allotted to me, I would like to say that the American Civil Liberties
Union and its Ohio Affiliate, the Ohio Civil Liberties Union, is very clear, in
response to the question which was directed to counsel for the appellant, that
we are asking this Court to reconsider Wolf
versus Colorado and to find that
evidence which is unlawfully and illegally obtained should not be permitted
into a state proceeding, and that its production is a violation of the Federal
Constitution, the Fourth Amendment and the Fourteenth Amendment. We have no
hesitancy about asking the Court to reconsider it because we think that it is a
necessary part of due process.

THE COURT: Are you asking
us to re-examine Wolf, or are you
relying on Rochin against California?

MR. BERKMAN: We are asking
the Court to re-examine Wolf. Our
interest is not necessarily the same as that of the defendant who was convicted
in this case, and our claim is more broad than that, Mr. Justice.

THE COURT: Do you think an
argument could be made based on the existing decisions of this Court?

MR. BERKMAN: I think that
an argument could be made. I think that there was certainly enough of a scuffle
under the fact situation involved in this case.

THE COURT: The handcuffing
of this—

MR. BERKMAN: The
handcuffing, the scuffling about the physical person of the defendant, and so
on. An argument might be made under the question of Rochin, but we, because of the pecu­liar position in which we stand
before you, are not raising that technical argument.

Our principal reason for
appearing on behalf of the American Civil Liberties Union and its Ohio
affiliate is to urge the unconstitutionality of the Ohio obscenity law, which
is Section 2905,Subsection 34 of the
Ohio Revised Code.

THE COURT: I notice that
statute also makes it a criminal offense, punishable presumably by seven years
imprisonment, to have possession of anything intended to prevent conception.

MR. BERKMAN: We understand
that, and in a case in which the facts were such that that could properly be
raised we would be here, with the leave of Court, arguing that point as clearly
as the question of obscenity which is now before us.

THE COURT: This is a fairly
new statute, isn’t it?

MR. BERKMAN: Yes, it is a
fairly new statute. The statute which immediately preceded it, as I understand
it, did include possession, the words “possession for some criminal purpose.”

THE COURT: Yes.

MR. BERKMAN: Unfortunately,
that statute apparently is no longer with us. It seems to us to be one of the
principal constitutional defects of the statute.

THE COURT: When was the
statute enacted?

MR. BERKMAN: I believe it
was in 1955, Your Honor.

THE COURT: Have there been
other prosecutions under it?

MR. BERKMAN: I beg your
pardon?

THE COURT: Have there been,
to your knowledge, other prosecutions under it?

MR. BERKMAN: Yes, there
have. I think that the principal one upon which the prosecution in this case
relies is the State of Ohio versus Collins. That was a Common Plea
decision, a trial court decision, which was carried no further than the trial
court opinion because of the fact that the jury found that the defendant was
not guilty, so there was no reason to proceed. There may have been others, but
the prosecution doesn’t rely on them and I don’t know of them.

THE COURT: Does your brief
give us a legislative history, if there be any, for this?

MR. BERKMAN: I beg your
pardon?

THE COURT: Does your brief
give any legislative history? This is recent, 1955; there ought to be some background to this.

MR. BERKMAN: Well, the only
legislative history about which we know appears in the brief of the
representative of the defendant in this case. We did not consider that point.

This lady was convicted
under this statute and given an indeterminate sentence of not less than one nor
more than seven years. She was convicted under this statute despite the fact
that a majority of the members of the highest court of our State, the Ohio
Supreme Court, felt that the statute itself was unconstitutional the reason for
this, of course, is the fact that Article I, Section 2, of the Ohio
Constitution holds that where there has been an affirmance, a denial of
unconstitutionality in a criminal case, in the Court of Appeals, it takes all
but one of the justices of the supreme court to hold a statute unconstitutional
and therefore void a conviction thereunder.

We are not at this point
disputing that statute. We feel that it might be a matter to be disputed. But
our interest is confined -

THE COURT: It’s a
constitutional provision, not a statute.

MR. BERKMAN: I’m sorry, the
constitutional provision but we are not now arguing about that. All we know is
that at least four—

THE COURT: This was a great—it
was hailed in 1912 as a great, forward-looking, liberal measure against
judicial usurpation.

MR. BERKMAN: We understand
that at that time some social legislation was under consideration, and, as
happens many times, situations come back to haunt us.

THE COURT: Herbert Bigelow
was the father of it, and he was a great, enlightened reformer.

MR. BERKMAN: We think—

THE COURT: He was the only
one to propose that at the time.

MR. BERKMAN: As I say, we
are not now contesting that constitutional provision. We think that in this
case it has resulted in an injustice, and we think that this Court—

THE COURT: But in some
other case it might help?

MR. BERKMAN: Those facts
are not before us, Your Honor. The statute under which the defendant in this
case was convicted, as far as we are concerned, reads like this:

No person shall knowingly
*** have in his

possession or under his
control an obscene,

lewd or lascivious book ***
print, picture ***.

There are some words left out,
but this is the heart of the particular statute. In short, as we understand it,
if a normal adult knowingly has an obscene book or picture in his possession,
without any criminal intent whatsoever, he has committed a felony in Ohio.

Now, as far as the facts
are concerned, the only facts which are pertinent to our argument are that she
was indicted and convicted under this statute. She was not charged with any
criminal intent; she was not charged with distributing this material to minors;
she was not charged with commercial traffic. She was charged only with knowing
possession of lewd, lascivious, or obscene books or prints.

THE COURT: Is there any
issue in this case as to if the books were obscene?

MR. BERKMAN: I think not. I
think that by any definition which this Court would choose to apply the
material was obscene, and for our purposes we are assuming that to be the fact.

We deplore the appellant’s
bad taste in the selection of her literature, and we are not now arguing in
favor of pornographic literature for the population. But this aesthetic issue,
we submit, is not presently before the Court. As we see it, the central issue
in considering the validity of this statute is this: Is this an area in which
the individual has the right to be let alone, to be free of governmental
restraint?

Mr. Justice Brandeis,
dissenting in 0lmstead v. United States, stated it better than I
could. It is cited at page 16 of our brief amicus.
He said this:

The makers of our
Constitution undertook to secure conditions favorable to the pursuit of
happiness. They sought to protect Americans in their beliefs, their thoughts,
their emotions and their sensations. They conferred, as against the government,
the right to be let alone—the most comprehensive of rights and the right most
valued by civilized men.

More specifically, however,
the issue is: Does this statute constitute an invalid exercise of the State’s
police power so as to violate the Due Process Clause of the Fourteenth
Amendment to the Federal Constitution? Now, we do not deny that a state may
properly legislate in the area of morals. Nor do we argue at this time—although
well at an earlier time we might have, after the decision in Roth versus the United States—thatobscene
utterances, the obscene word, the printed word, are within the protection of
the First and Fourteenth Amendments as they relate to free speech and the
press. In passing and in candor, the American Civil Liberties Union adheres to
the proposition that all forms of expression may be limited only by the application
of the tests arising under the First and Fourteenth Amendments, the test of
clear and present danger, or, as modified in Dennis, clear and proper danger.

THE COURT: Are you asking
us to reconsider Roth?

MR. BERKMAN: We are asking
you to reconsider Roth, in addition
to the other—

THE COURT: You’re asking a
lot today.

MR. BERKMAN: Not
representing individual defendants, we have considerably more freedom.

THE COURT: May I suggest
that you do represent a defendant? You haven’t been authorized to make an oral
argument on behalf of the American Civil Liberties Union. You’re sharing the
time of the appellant, and therefore you’re speaking on his behalf and not
generally.

MR. BERKMAN: We understand
that, Mr. Justice Frankfurter.

THE COURT: But you just said
that you’re not—

MR. BERKMAN: Consequently,
we would like to direct our at­tention to the argument which we feel is
directly related to—

THE COURT: I think you can
make any argument on behalf of defendant, but you can’t say you’re not
restricted within the bounds within which he’s restricted.

MR. BERKMAN: Well, Mr.
Justice Frankfurter, there are several branches to our request to this Court:
Number one, we think that, as far as all forms of expression are concerned,
they should be protected by the First and Fourteenth Amendments. We think the Roth case—

THE COURT: My objection is
not to your making any argument that’s relevant. You were given leave to file a
brief.

MR. BERKMAN: Yes, Your
Honor.

THE COURT: You were not
given leave to make an oral argu­ment on behalf of the American Civil Liberties
Union. You’re sharing the time of the appellant, on behalf of the appellant.

MR. BERKMAN: Yes, Your
Honor.

Our other branch of our
argument is that we feel that, even in the area of morals, which we have conceded
is a proper legislative area, that, as in other permissible legislative areas,
such enactments or statutes must be reasonably adapted to accomplish the
legislative purpose and must not be arbitrary and excessive. Furthermore, they
must not infringe upon paramount individual rights, particularly where a
similar legislative result may be achieved by other less drastic means.

We submit that interposing
a policeman between a normal adult and his library is not a proper means of
accomplishing what might otherwise be a valid legislative purpose. We contend
that the statute is arbitrary and excessive. We urge that there are important
individual rights which are protected against encroach­ment by the states by
the concept of ordered liberty embodied in the Fourteenth Amendment, and which
are substantially and unnecessarily limited by this statute. And we say that
the evil sought to be controlled here can be met by less drastic statutory
means without limiting the liberties of the citizens of the State of Ohio. Consequently,
we feel that the statute is unconstitutional.

Now, our brief has
discussed some of the sociological and scientific studies at page 8. In
Appendices A and B we have correlated some of the studies which have dealt with
the question of whether obscene material results in depravity. We note that, at
page 8, the conclusion seems to be that there is no positive study that so
holds. We are not saying that this is a necessary consideration to the matter
of the First Amendment, clear and present danger. That is not our point. But we
are trying to demonstrate that this legislation is not reasonably related to,
nor adapted to the accomplishment of any legitimate governmental purpose.

Why must the relationship
be shown between the legislative means and the desired result more clearly in
this kind of a case? It seems to us that it is because individual rights, such
as the right of privacy, the right to read—which has been substantiated as part
of the Fourteenth Amendment in Wolf versus
Colorado and Butler versus Alichigan, both
of which opinions were written for the Court by Mr. Justice Frankfurter.

And we do not feel it
necessary to consider whether the Fourth Amendment is incorporated bodily into
the Fourteenth Amendment. We think that certainly the right of privacy is a
basic concept of freedom which appears there.

We think also that Smith versus California gives an indication of the direction in which this Court
may go in this case, and that is that even though the First Amendment is not
involved in a matter dealing with admittedly obscene material, we think that
this statute certainly has a potentially inhibiting effect upon freedom of
expression, even if the material itself is not constitutionally protected.

And we feel that the evil
sought to be controlled here can be dealt with by means that don’t infringe
upon individual freedom. We think that there are other ways of attacking the
problem of obscenity without saying to a person: You cannot have in your
possession a book which may or may not be obscene, which you do not know is
obscene until you read it, and immediately after you have read it and have the
necessary knowledge—whatever that may be, and that’s a question which is left
for another day, too—as soon as you have the requisite knowledge, you are
guilty of a felony. We think that this is certainly a broadly drawn statute
which is not necessary to achieve this purpose.

We urge the Court to keep
in mind its own admonition in Roth, in
which you will recall Mr. Justice Brennan, speaking for the Court, said this:

The door barring Federal
and state intru­sion into this area cannot be left ajar. It must be kept
tightly closed and opened only the slightest crack necessary to prevent
encroachment upon more important interests.

In this case, Your Honors,
the door cannot be left ajar. It must be kept tightly closed.

MR. CHIEF JUSTICE WARREN:
Mrs. Mahon?

ORAL ARGUMENT OF GERTRUDE BAUER MAHON, ESQ.,ON
BEHALF OF APPELLEE

MRS. MAHON: May it please
the Court and Mr. Chief Justice:

At the outset I want to say
this, that when this case was pending in the Supreme Court of Ohio, or just
after its deposition, one of the State’s exhibits disappeared, one of the
obscene books. And when the exhibits were returned to the Court of Common
Pleas, there was just the cover of this one obscene book that came back, and we
don’t know what happened to it. I’m only mentioning this because you may be
wondering, if you examined the exhibits, why one of the books only has a cover
and the rest of it is gone. What happened to it—

THE COURT: Isn’t it
conceded that the material was obscene?

MRS. MAHON: That’s right,
Your Honor. There was never any issue—

THE COURT: So it doesn’t
make any difference.

MRS. MAHON: No, it
wouldn’t, except that I did not introduce the cover as an exhibit.

THE COURT: Yes.

THE COURT: Has the Clerk
been indicted?

[Laughter]

MRS. MAHON: Well, that
shows you the necessity for the provision in this statute against possession,
knowing possession. I’m not referring to the Clerk now.

THE COURT: How do we know
he didn’t read it?

MRS. MAHON: Well, frankly,
the statute doesn’t prohibit reading an obscene book. It doesn’t prohibit
looking at an obscene picture. The very terminology of the statute shows that
the whole purpose of it is to prevent the circulation of obscenity.

THE COURT: But if he keeps
it, as I understand it under your supreme court’s interpretation, after reading
it, and it’s obscene, then the possession of it is criminal under the statute,
isn’t it?

MRS. MAHON: Mr. Justice
Brennan, if he has unlawful possession and knowing possession—

THE COURT: Where’s that
either in the statute or in the supreme court opinion?

MRS. MAHON: In the charge,
in the indictment that this woman was charged. Of course, it had to be an
unlawful possession. In other words—

THE COURT: But possession
is unlawful under the statute.

MRS. MAHON: I disagree,
Your Honor.

THE COURT: Unlawful
possession is circular reasoning.

MRS. MAHON: Well, there is
a—

THE COURT: The statute
makes possession unlawful; isn’t that correct?

MRS. MAHON: Well, there is
a possession in the hands of the prosecution. For example, I’ve had those
obscene books and pictures for the purposes of prosecution. The courts had them
for exhibits. Now, there’s a distinction, certainly, under the law, between a lawful
possession and an unlawful possession as prohibited by the statute.

THE COURT: Are you saying—I
understood you to say a little while ago that these statutes were directed
against circulation of obscene matter. Is that right?

MRS. MAHON: That’s right,
Your Honor.

THE COURT: Is that what you
said? Now, let me ask you what that means. Do you mean the statute has been
construed restrictively to cover only situations of possession for purposes of
circulation? Has your court so construed it?

MRS. MAHON: There has been
no such construction. But a reading of terminology –

THE COURT: The construction
has been exactly opposite. Your supreme court in this very case has contrued
this as meaning that if you have possession, naked possession, with knowledge
that it’s obscene, you’re guilty of a crime under the statute.

MRS. MAHON: That is right.
But inherent in the element of possession is the opportunity for circulation,
wouldn’t you say, Mr. Justice Brennan?

THE COURT: It’s not what
I’m saying; it’s what your supreme court is saying.

MRS. MAHON: Well, that’s
what I have in mind in connection with the additional provision in the Ohio
statute which was made in 1955. Prior to that time, it prohibited possession,
but possession for the purposes of exhibition or for the purposes of sale. It
was limited to that. In 1955, the
legislature included this provision to prohibit a knowing possession, the
naked, knowing possession of obscene materials, without regard to the purpose.

Now—

THE COURT: Does that
mean—let me see if I understand that.

Does that mean that any
book on my shelves, on any of my shelves, which may be found to be obscene
constitutes the possessor, who does nothing but have that on his shelf, a
violator of that statute? Is that correct or incorrect?

MRS. MAHON: A knowing
possession—under this statute—a knowing possession of obscenity is prohibited
by this statute. I would say it extends to anybody who has—

THE COURT: On a bookshelf,
merely as part of his library—he’s a bibliophile and he collects first editions,
not for the contents, but because it’s a first edition. And any book on his
shelves, on my shelves, which I know to be obscene in content, but a matter of
great indifference to me because I’m interested in the fact that it was
published in 1527—that makes me a violator of this statute? Is that correct?

MRS. MAHON: I would say so,
Your Honor; any collector of obscenity would be—

[General laughter]

THE COURT: Does the
question of purpose—

MRS. MAHON: —would be
violating this statute.

THE COURT: Well, Uncle Sam
has one of the biggest collections, and I can tell you now where it is, but
it’s outside of your jurisdiction.

[General laughter]

THE COURT: But that is not
what you said when you said the purpose of this, the aim of this statute, is to
prevent circulation, dissemination. Now, having it on the shelf isn’t
disseminating, quite the opposite. There are no more [Inaudible] people in the
world than bibliophiles.

MRS. MAHON: Well, Your
Honor, but you would have the op­portunity, having possession of it, to
circulate it, would you not?

THE COURT: What you’re
saying is—

MRS. MAHON: You would have
the opportunity to circulate the obscenity.

THE COURT: Well then, what
you’re saying is that this statute— as your supreme court has indicated to
anybody who reads it— your statute says that anybody who has in his library,
under the cir­cumstances I’ve indicated, a book concededly containing obscene
matter violates your statute; and the justification for it is that people might
be tempted to circulate it. That’s your justification.

THE COURT: You can arrest
the disseminator, and the way to deal with it is not to have it on his shelf?

MRS. MAHON: That’s right,
Your Honor.

THE COURT: All right, now I
understand you.

THE COURT: There’s no
charge, was there, here, that she attempted to disseminate it or intended to
disseminate it or intended to circulate it?

MRS. MAHON: No, there was not.
However, there is the dispute on this evidence. In view of the fact that Mr.
Kearns gave you some evidence, one-sided in this case—the State’s evidence was
in direct conflict with the evidence offered by the defendant. As to the locale
of this material, to begin with, in the house: All of this obscene material was
found in her bedroom, along with a gun and a tape recorder. And that’s in the
record.

Now, the books, the obscene
pictures—there was a hand-pencilled drawing of a very obscene nature—that was
the State’s evidence, that the officers found all this in her bedroom. They
came along and said: The officers didn’t find it in her bedroom, they found it
in her basement. But there was a direct proof and—

THE COURT: Well, wouldn’t
you say she was still guilty even if they had found it in the basement?

MRS. MAHON: I would say,
sir, if she—honorable sir—if she had acknowledged possession. But the claim was
that she didn’t have possession of that, that she had an involuntary, if you
will, possession for someone else. She denied that she had possession of that
for herself. That was the issue.

THE COURT: This man—isn’t
it correct that the Supreme Court of Ohio—at least this is the way I read their
opinion—held that, even if we accept her story as true, that she simply packed
up his stuff, the former roomer, and put it down in the basement, even
accepting that as true, that still there was a violation of the statute?

MRS. MAHON: Yes, I know,
Your Honor.

THE COURT: Isn’t that what
the court held?

MRS. MAHON: That’s what
they held.

THE COURT: And that’s what
we’re bound by here, that construction of your statute.

MRS. MAHON: Well, they held
that in Syllabus 1, based upon the defense evidence alone, Your Honor. And I,
of course, mentioned that in my brief, that I feel that the Syllabus 1 of the
opinion of the Supreme Court of Ohio is subject to criticism on that score,
because they based that on the defense evidence alone.

THE COURT: It may be, but
we can’t do anything about that.

MRS. MAHON: Well, I know.
But to me, I mean as a prosecutor, it was a jury question, in view of the
conflict as to whether she had possession, as she was charged. She was charged
in the indictment with possession and control. Now, if she had possession for
someone else, she didn’t have control over that, did she, in the sense that she
had the right to do with it as she would, if it belonged to somebody else.

THE COURT: Well, why
wouldn’t she? That statute says if she had possession, she had possession, and
if she didn’t burn it or throw it away or something, why wouldn’t she be
guilty?

MRS. MAHON: The charge in
the indictment didn’t charge her with possession as a bailee. It charged her
with possession and control.

THE COURT: Do you think
there’s any difference? Do you think a person can get off by saying: I’m
holding all this obscene literature for somebody else, and therefore I’m not
guilty under the act? Is that the court’s opinion here?

MRS. MAHON: No. I believe
this, that if she had a defense that this material was not in her possession in
the sense that it was packed away and belonged to someone else, was not
available to her.

THE COURT: Oh, not
available?

MRS. MAHON: Yes.

THE COURT: And she knew
about it, she knew it was there in her house?

MRS. MAHON: In the
basement.

THE COURT: She knew it was
there, and that it was very obscene, and didn’t do anything.

MRS. MAHON: I don’t believe
that the statute contemplates a conviction under those circumstances. Now
that’s where, of course, I very humbly disagree with the Supreme Court of Ohio
in Syllabus 1, because neither the charge contained in the indictment—under
that charge, charging her personally with the possession and control, nor the
charge of the court in instructing the jury on possession—he never instructed
the jury that if they found, that even if they found that that material
belonged to somebody else and was in the basement, that they could find her
guilty. There was no such instruction by the court.

THE COURT: Do you think
that under a statute that makes it a crime to have morphine or narcotics that a
person could get out, on the basis that he was holding or in possession for
somebody else?

MRS. MAHON: Depending upon
the type of possession. Here is a possession in a—well, Your Honor, I see what
you mean on that score, and there is no one that can doubt the correctness of
the judgment of a legislature in prohibiting possession of narcotics,
regardless of who they belong to. I recognize that ownership—

THE COURT: In Prohibition
times, the possession of liquor; it didn’t make any difference who it belonged
to.

MRS. MAHON: That is true.
But I believe this, Your Honors, that if the jury had given credence to her
evidence that we might well have found her not guilty. Certainly, they couldn’t
give credence to both the State’s evidence and the defense, because it was in
conflict.

THE COURT: Mrs. Mahon, are
you under the impression that your argument starts with the problem that we are
here to decide whether she had possession as a matter of title or if she had
merely a bailee’s possession? Do you think that’s the question before us?

MRS. MAHON: No, whether the
statute—

THE COURT: Do you think
we’re concerned with that question?

MRS. MAHON: All right, Your
Honor. The statute—I thought that you might be concerned with it from the standpoint
that the argument is that whether she had possession for or on behalf of a
roomer or—

THE COURT: What difference
does it make under your statute? Or assume, assume that you have to have
something which as a matter of law means legal possession, and your supreme
court has found, has sustained the statute on the assumption that this
defendant was found to have had legal possession, whatever legal possession may
be in Ohio. But it doesn’t require anything beyond possession, does it?

MRS. MAHON: No.

THE COURT: Well then,
that’s the basis from which one has to start in this case.

MRS. MAHON: All right,
then.

THE COURT: It requires
possession and knowledge.

MRS. MAHON: Possession and
knowledge.

THE COURT: In other words,
a checker down at the Union Sta­tion wouldn’t be guilty if these things were in
a suitcase?

MRS. MAHON: No.

And scienter was proven in
this case. There was never any dispute raised on that in the reviewing court
that scienter was not established. So that the elements of the crime were established
beyond a reasonable doubt.

Now, the constitutionality
of this legislation—of course, we are relying upon your decision in the Roth case, in which a Federal statute
providing that obscene, lewd, lascivious or indecent material is
nonmailable—and in the Roth case, Mr.
Justice Brennan made this statement:

Implicit in the history of
the First Amendment is the rejection of obscenity as utterly without redeeming
social importance. And we hold that obscenity is not within the area of
constitutionally protected speech or press.

We believe that this
statute legislating the, regulating obscenity and the dissemination of it, or
the circulation of it in Ohio, is a proper exercise of the police powers of the
State. Recognizing that obscenity is an evil that has to be coped with—and, of
course, that is not peculiar to the State of Ohio alone—we believe that—

THE COURT: Is there any
other state, to your knowledge, Mrs. Mahon, that makes mere possession a
criminal offense?

MRS. MAHON: Well, I haven’t
run down the statutes, Your Honor. But this is true: that when this Court had
the Winters case before it—

THE COURT: Winters against New York.

MRS. MAHON: In the Winters case you had a different—that
was a similar statute to the Ohio statute, but I do not recall that it
prohibited possession alone. And the portion of the statute that was under
consideration had nothing to do with this particular provision. But I do
remember, in reading the Winters case,
that Mr. Justice Frankfurter in his dissent on that pointed out, among other
statutes, a number of statutes of the states that might be struck down as a
result of the decision in the Winters case,
and he mentioned the Ohio statute. However, the portion that we have here—

THE COURT: This must have
been before ‘55.

MRS. MAHON: Well, I say,
the portion that we have here was not in the Ohio statute at that time.

However, getting back to
the Roth case—which the other side,
the defense, completely ignored on the issue they’ve raised here in connection
with the constitutionality of this legislation—in the Roth case I want the Court to know this: that in the trial of this
case, the trial judge in instructing the jury on the test to be used to
determine whether this obscene—whether this material was obscene—used the
definition that this Court laid down in the Roth
case and told the jury that:

*** the proper test is
whether, to the average person, applying contemporary community standards, the
dominant theme of the material in question, when taken as a whole, appeals to
the prurient interest.

That was the instruction of
the court. He followed the definition that this Court laid down in the Roth case.

And, getting back to the
constitutionality of legislation prohibiting scienter possession, in the
supreme court’s opinion of course, in the dissent, I think Judge Herbert
discusses the Smith case. And that
case came to this Court from California, and I think it’s distinguishable on
the elements required to be proven by our legislation. This Court, in reversing
that case, pointed out that scienter was not required, and that under those
circumstances a bookseller could not be held liable, could not be held to
examine all the books that he had in his store in order to avoid a prosecution
under that ordinance. But we do have the element of scienter in our State
statute.

THE COURT: Do you see any
constitutional difference between a statute making possession of narcotics a
crime and a statute such as yours making obscene literature?

MRS. MAHON: Absolutely not.

THE COURT: You think
they’re both the same?

MRS. MAHON: I think so, Mr.
Justice, because of course, restricting the possession of narcotics comes
within the police power of the state to serve public health.

THE COURT: Really, your
constitutional argument, if I understand it correctly, from Roth, is that Roth says obscene literature is not protected, and therefore it’s
just like contraband, and therefore the State can do anything they want with
it.

MRS. MAHON: It is within
the police power, yes. Yes, that is our position. There is a distinction, of
course, in the Roth case. The Court
was considering knowingly mailing obscene material. But what good does it do to
legislate to prohibit the production of obscenity, the distribution of it, if
ultimately possession is constitutionally protected—the user of it, just as the
user of narcotics.

On the other issue, I
think, that is before this Court, on this search and seizure, on the trial of
this case the two officers that testified were already on the scene when this Lieutenant
White came out there, ostensibly with a search warrant. The record doesn’t
show, and we have admitted, and as the supreme court held, this was an unlawful
search insofar as this particular evidence was concerned, at least. There was
no search warrant to cover it.

But on the motion to
suppress this evidence at the time of the trial, the court relied upon the Lindway case in overruling the motion to
suppress. And, of course, the constitutional provision against an unreasonable
search and seizure, this Court has held in the Wolf case, does not prevent a state from offering into evidence, it
doesn’t affect the competency of evidence tending to establish the commission
of a crime.

Now, we’re relying on the Wolf case, too, with this Court. And if
this is a settled proposition insofar as the states are—rules of evidence are
concerned. It really is a judicial rule of evidence, and Ohio does not follow
the exclusionary rule. And this Court has held that the state has a right to,
and it is not in violation of the Fourteenth Amendment to so admit evidence,
even though obtained without a search warrant.

I have never been able to
reconcile—that is, not reconcile; but it seems to me that the provision in the
Constitution against an unreasonable search and seizure and the competency of
evidence establishing the commission of a crime are not directly related in
this respect: that the absence of a search warrant can be no defense to a
crime. If the evidence establishes a crime, what defense is there in the
absence of a search warrant? It’s a collateral matter. It provides for a civil
suit for trespass if that constitutional right is violated. Police officers are
amenable to—as held in the Lindway case,
and I’m reading from the Lindway case
right now:

An officer of the law who
makes a search and seizure in a dwelling or other premises without a warrant or
with an illegal warrant in contravention of Section 14, Article I, of the
Constitution of Ohio is a trespasser and amenable to an action for such
trespass.

There are many
constitutional and statutory safeguards provided for in the Ohio Constitution
and the Ohio statutes to ensure that persons accused of crimes shall have a
fair and impartial trial, and those safeguards apply to matters of form as well
as substance. But neither the laws of Ohio nor the Ohio courts are solicitous
to a person accused of crime in concealing the evidence of their guilt; and
under Ohio laws many presumptions are indulged in favor of accused persons, and
a strong measure of proof is required as to every material fact necessary to
establish the guilt of the accused. But such indulgence does not reach to the
extent of rejecting competent evidence because of the method by which it was
procured.

And so, in the Ohio
Constitution and under the Ohio laws, the fact that there was a search warrant
would not make the evidence any the more competent or the fact that there was
no search warrant would not make it any the less competent. It has no bearing
whatsoever on the evidence itself proving the corpus delicti of the crime.

This brief amicus curiae, Your Honors, raises an
issue that was not brought up in the Court of Appeals or in the trial court,
and I don’t believe that the issue should be enlarged upon by the time they
reach this Court, because the Court of Appeals, for example, had no opportunity
to pass upon a comparison of the statutes, this 2905.34. In the brief amicus curiae they talk about 2905.37and 3767.01, and try to draw a comparison
trying to show that there’s a denial of the equal protection of the laws by
reason of the exemptions in those other statutes. But the lower courts had no
opportunity to consider those statutes along with 2905.34. There was never any
issue raised in this case by this defense until we got to the Supreme Court of
Ohio and agreed to a brief amicus curiae being
filed. The defense never claimed that there was a denial of the equal
protection of the laws in the Court of Appeals on 2905.34.

Indeed, it makes no
exceptions, that statute alone. No one is exempt. But in these other statutes
they talk about—2905.37, for example, that’s so that druggists in their
legitimate business shall not be affected by 2905.34. But it says “in their
legitimate business,” and I don’t think that under 2905.34 that a druggist,
even a druggist, could violate that provision and unlawfully have in
his—knowingly have in his possession in the drugstore obscene material.

But this is what the brief amicus curiae raises. And they talk
about the right of a person to read being violated under the Constitution.
Well, under your Roth case you held
that the Constitution doesn’t protect obscenity in any respect. The right to
read—and they said the right of privacy, and that’s getting back to having
books in your private library. If under the Roth
case the Constitution doesn’t protect the collection of obscenity, then I
say that you can’t have them in your private library either, or that there’s no
constitutional guarantee that that can be done.

THE COURT: Have you made an
examination of the library of the State University of Ohio or Western Reserve
or Wooster, or—scores, you’ve got scores of colleges, I suppose, that are
esteemed. I haven’t been told, but my guess is, probably more than any other
State in the Union. Would the various prosecutors—certainly, they’ve got
possession of the books in their library, wouldn’t you think so, in any view of
possession?

MRS. MAHON: I would not
agree, Mr. Justice Frankfurter, that any of those libraries contain any type of
book such as the exhib­its are in this case.

THE COURT: I haven’t seen
these exhibits. You think I have to. But I’m sure that all those libraries, or
most of them, have books that in their contents would be condemned if a seller,
under obscenity statutes, was selling obscene books. I can’t believe that the
University of Ohio or the University of Cincinnati hasn’t books that I shan’t
mention in here lest there be people who [Inaudible]. But I’m sure they have
them in those institutions. They’re institutions of learning.

MRS. MAHON: Yes, Your
Honor.

THE COURT: Pornography
itself is a subject for learning, a very important subject.

MRS. MAHON: I would find it
difficult to believe, without even examining those university libraries, that
those libraries would contain what has been passed upon by a jury in this case
as obscene material. And if that were so, if any one of those libraries
contained the obscene books and pictures and the hand-pencilled drawings that
are to be found as exhibits in this case, then some­body should be arrested.

THE COURT: But
psychiatrists have studied these things as to why human people are so
perverted—I take your indication of what these things are—that human beings are
so perverted that they bother with these things, manufacture them, like them,
print them, sell them, read them. Psychiatrists have a lot of business of this
sort, I can assure you, Mrs. Mahon.

MRS. MAHON: Well, I’ve
often—I won’t say it, Your Honor.

THE COURT: Probably wise,
probably wise.

MRS. MAHON: Probably wise.

THE COURT: Maybe it might
be wiser not to discuss the university libraries much further, for the benefit
of the university libraries.

MRS. MAHON: That is true.

Well, of course, I’m trying
to stick to the past in this case, Your Honor. I’m not covering the whole field
of—

[Laughter]

THE COURT: But we’re
examining a statute of general application.

MRS. MAHON: It doesn’t
exempt a psychiatrist. It says “whoever has.” There is no exemption in it, so
that—

THE COURT: There are some
important medical faculties in Ohio, and therefore important psychiatric
branches of medicine.

THE COURT: Is the
petitioner a psychiatrist?

MRS. MAHON: Who?

THE COURT: Petitioner, what
is her calling? Is she a teacher or—what is her—

MRS. MAHON: Oh, no. I don’t
know what is her—

THE COURT: We have your
assurance that psychiatrists are not exempted from this statute?

MRS. MAHON: Well, as a
prosecutor, if we had one charged with unlawfully and knowingly having this in
his possession -and, of course, the
element—

THE COURT: You don’t say
that you would prosecute him, though.

THE COURT: I think only a
short time ago there was a proceeding at the Port of New York to prevent one of
the great Middle West universities from getting the background, the source
material, of the Kinsey Reports. And they were obviously obscene, much of it.
And I think the Government finally admitted all of it to the university for
scientific purposes.

MRS. MAHON: For scientific
purposes.

THE COURT: Yes. But now,
I’m just wondering, if that were the University of Ohio, the State University
of Ohio—it wasn’t, as I recall it—but if it had been, would those people have
been guilty of violating this law?

MRS. MAHON: I believe, Mr.
Justice, that the law is directed against a scienter possession. By your very
definition in the Roth case, a
scienter possession for this purpose—well, I guess the Roth case, again—you have a—and I say under the law there is a
difference between a lawful and an unlawful possession.

THE COURT: Well, the only
question I’d be interested in having you answer is the one that Mr. Justice
Frankfurter asked you earlier in your argument: If there is anything in this
statute or in the interpretation that your supreme court has made of that
statute which differentiates, let us say, between possession of these materials
by a housewife on the one hand, and by, let us say, the university of some
state on the other hand, for scientific purposes.

MRS. MAHON: Yes. Well, of
course the statute doesn’t make any such distinctions, I mean the language of
it.

THE COURT: Yes, but does
the interpretation of your court make any such distinction?

MRS. MAHON: Well, so far we
haven’t had a decision on anybody from a university charged with unlawful
possession of obscene material. I think that would be a question coming up. I
don’t think that the law would sustain a prosecution, going into a
university—well, who would you charge with possession if it were in the
library, to begin with? An unlawful possession, a personal possession, a
scienter possession?

THE COURT: I thought you
said a few moments ago that if they had possession and it was obscene, then
they could be prosecuted. You tell me now they’ve not been doing their duty.

MRS. MAHON: The individual
who would have scienter possession. I don’t know who you would charge.

THE COURT: You couldn’t
draw any distinction under this statute between a university librarian and
anybody else, could you? As far as you’re concerned as a prosecutor; am I
wrong?

MRS. MAHON: I think it’s
the possession for circulation.

THE COURT: But she’s not
charged with that.

MRS. MAHON: No, but the
possession with the opportunity for circulation.

THE COURT: That’ll cover
the library, because that’s what the library’s for; it’s a circulating library.

MRS. MAHON: That’s the
reason for it.

[Laughter]

THE COURT: Not only that,
but libraries sell books by way of exchanges.

MRS. MAHON: That are
obscene?

THE COURT: Well, all sorts.

MRS. MAHON: The only cases,
Your Honors—perhaps I should say that I didn’t cover the field in this issue,
beyond what my experience has given me as a prosecutor in prosecutions brought
under this statute—we’ve had a number of them, where individuals are found in
possession of obscene material on their person. They’re perhaps in a car, a
defendant in a car; the police are searching him for something else and they
come upon a lot of obscene material. That person is charged under this statute.

Now, my experience on it
has been with the cases of the type where they’re walking around with the
material and have an opportunity to disseminate the contents of it. I had cases
where the officers come upon it in searching an individual who may be quite
anonymous, as in their automobile. Now, insofar as having a case against the
head of a university, I haven’t. Now, I don’t know the answer to that. I think
it would have to be something on the part of the individual that would bring
him under this statute, rather than scienter possession. Because a knowing
possession of this ob­scenity implies a prurient interest, to use the language
of this Supreme Court in the Roth case.

THE COURT: Doesn’t it appear
to the contrary, that whether this had been in her bedroom or whether it was
down there in the basement, as she said, if she knew it was there it was still
a violation of the law?

MRS. MAHON: Oh, no, not if
she knew it was there, Mr. Justice. The evidence established that she had
scienter. She had knowledge of the obscenity of the contents of it.

THE COURT: Yes, that’s
right.

MRS. MAHON: Not that she
knew the book and pictures were there; that scienter element.

THE COURT: Yes, she had
possession of them, knowing what was in them. But as I understood it, your
supreme court held that whether her story was true or not that she had taken
them out of a room of one of her roomers and had stored them down there in the
basement, if she had them with knowledge of the contents, that she was as
guilty as if they had been in her bedroom door.

MRS. MAHON: That is so. I,
of course, disagree with her. I think, because it’s based on the defense
evidence alone, some of us might.

THE COURT: You’re not in a
very good position to disagree with the interpretation that your supreme court
puts on your Act, are you?

MRS. MAHON: No.

THE COURT: Not in this
Court, anyway.

MRS. MAHON: No. However,
having tried the case, and knowing that it was a question on the weight of the
evidence as to who was telling the truth to begin with, the State, the police,
or the defendant, because there was a conflict—maybe that’s why I get the
impression that I feel that the syllabus is a one-sided thing; and it was a
jury question to begin with. Nobody can say that the jury believed her story.
Wasn’t that a jury question to begin with, that they believed her story?

THE COURT: Your statute
does seem to contain some exceptions, if I read it correctly. Section 2905
exempts from the provisions that are involved here: “. . . teaching and
regularly chartered medical colleges, publication of standard medical books,
regular practitioners of medicine for the purpose of legitimate business.” They
don’t affect the distribution of bona fide works of art.

MRS. MAHON: That’s in a
separate section.

THE COURT: Well, it
applies. I’d understood you to say up to now that there were no exceptions,
that the charge was obscenity in and of itself.

MRS. MAHON: No, I said that
2905.34contains no exceptions.

THE COURT: But you have to
read that section together with—

MRS. MAHON: With the
others, yes.

THE COURT: —with some other
sections that bear different numbers.

MRS. MAHON: Yes, those are
the two: 2905, exempting druggists and exempting—

THE COURT: Bona fide art
associations, whatever that is.

MRS. MAHON: Of course,
there wasn’t any question raised in connection with those other statutes, as I
said to you, in the Court of Appeals, any issue raised. That was brought up in
the brief amicus curiae on a denial
of equal protection of the laws, because there are exceptions in those other
statutes.

THE COURT: They do not
apply to this statute?

MRS. MAHON: They mentioned
2905.34, yes.

THE COURT: You think all
the exceptions apply to each statute?

MRS. MAHON: No, the one
that he is reading from—

THE COURT: Does that apply
to the statute under which this lady was convicted?

MRS. MAHON: That is true,
Mr. Justice. There are exceptions in that other statute exempting—

THE COURT: Well, this is
29—the one you’ve got here—is 2905.34, isn’t it? This exception that I’m
reading says 2905.33, which is the one before 34, to 2905.36 don’t apply, in
these categories of things that I’ve been reading.

MRS. MAHON: Yes.

THE COURT: Is that right?

MRS. MAHON: That is true.

THE COURT: Well, I don’t understand
your other argument. Do you understand that the exceptions there apply to the
statute which isn’t here, or do they apply also to this statute under which
this lady was convicted?

MRS. MAHON: The exceptions
in the other statute are really exemptions, in this respect—now, if I can get
this clear. You see, I didn’t have this issue in the lower courts at all. It’s
coming up here—there is a statute that exempts teachers and druggists in their
legitimate business. I’m trying to find the number here.

THE COURT: 2905.37.

MRS. MAHON: It’s 37,
2905.37—I do not have the wording of
2905.37.

THE COURT: I think it
appears on page 34 of the appellant’s brief, 2905.37. Page 34.

MRS. MAHON: Well, 2905.37
reads that:

Sections 2905.33 to 2905.36
(which, of course, would include 2905.34)...
do not affect teaching in regularly chartered medical colleges, the
publication of standard medical books, or regular practitioners of medicine or
druggists in their legitimate business, nor do they affect the publication and
distribution of bona fide works of art.

Well now, that is a
reasonable classification, in the sense that 2905.34, so long as 2905.34 is not contravened—for example, it says a
druggist in his legitimate business. Now, nobody could hold or argue that it is
the legitimate business of a druggist to knowingly possess obscene materials.

THE COURT: I suppose that
exemption is directed toward the art of the other statute that makes anything
for the prevention of conception, the possession of anything for the prevention
of conception, a criminal offense.

MRS. MAHON: I suppose, Your
Honor. There are other provisions in 2905.34 with which this case isn’t
concerned. We have one portion of the statute under which he was charged, and
it’s quite a lengthy statute to begin with, and it covers various other
matters. However, I still say that this 2905.37 would not exempt a druggist
from 2905.34 if he knowingly had in his possession obscene materials.

THE COURT: Well, would it
have exempted this lady if she—if what she had was a bona fide work of art
made, published, and distributed by a bona fide association of artists, or an
association for the advancement of art?

MRS. MAHON: No, it would
not, Your Honor, because the very end of that statute says “whose demonstrated
purpose does not contravene Sections 2905.06 through 2905.34.” That’s the
qualification, there. Even if she belonged to a bona fide association of
artists.

THE COURT: I don’t know
what those other sections define.

MRS. MAHON: Even if she
belonged to the—if it was for the advancement of art—it cannot be held to
contravene—I mean, there’s no exemption if it contravenes 2905.34.

There were several other
issues in this case, such as that the sentence of the court, that the sentence
is unconstitutional. Under the laws of Ohio, a sentence is not for a definite
term, and in the opinion of the Supreme Court of Ohio the statute controlling
is mentioned. For example, a statute may call for a penalty of one to seven
years. Grand larceny calls for that. The court doesn’t sentence the defendant
for one year or for two years or for seven years. And they’ve been arguing all
the way up through the courts of Ohio that this defendant has been sentenced
for seven years, which is not a fact. The court merely sentences for an
indefinite term. In other words, they sentence to the Ohio State Penitentiary,
sentence to the Ohio State Reformatory, or: I sentence you to the Ohio State
Reformatory for Women, in this case, which means this; that the statute
provides for a minimum of one and a maximum of seven. But after serving the
minimum the defendant can come up for consideration for parole, and in fact may
get out before the—

THE COURT: Is she out now?

MRS. MAHON: She has never
served time; she’s been out on bail.

THE COURT: Out on bail?

MRS. MAHON: Hmmmm [Positive
noise].

In other words, on a
sentence to the Ohio State Reformatory for Women in this case, the defendant’s
time could be one year less a month; in other words, she’s put in eleven
months. That all rests with the Ohio Pardon and Parole Commission, under the
laws of Ohio, as to how long a defendant will put in time. That is, except in
first degree murders. So that there’s nothing cruel and unusual about the
punishment in this case. There’s a minimum of a year and a maximum of seven.

THE COURT: But in your
State—is your State like other states, some other states, where they have an
indeterminate sentence law that when they are sentenced they are sentenced for
the maximum until the parole board—

MRS. MAHON: Oh, no.

THE COURT: —reduces it to a
shorter term?

MRS. MAHON: Oh, no, Mr.
Justice. Mr. Chief Justice, under the entry of the court, all it says is:
Defendant is sentenced to the Ohio State Penitentiary. With the rules and
regulations of the Ohio Pardon and Parole Commission, that defendant can come
up for consideration upon the expiration of the minimum.

THE COURT: Yes, I
understand that.

MRS. MAHON: There’s no
maximum sentence.

THE COURT: No, I understand
that. But I’ve operated under an indeterminate sentence law, too, for many
years. But in my State when they go for the indeterminate sentence under the
indeterminate sentence law, the sentence is for the maximum until they do have
that hearing and fix it at a lower number of years.

MRS. MAHON: The sentence
includes that?

THE COURT: No, there’s
nothing said about it. But that is the statutory interpretation of it. I don’t
know that it makes a great deal of difference. But I was just wondering.

MRS. MAHON: Well, of
course, it’s been my impression that they go to—for example, on the one to
seven, or one to ten—for example, we have an armed robbery; the penalty on
armed robbery is ten to twenty-five years. Now, under the rules and regulations
of the Ohio Pardon and Parole Commission, and depending upon the institution to
which the defendant goes—for example, the Ohio State Reformatory takes
offenders up to thirty, and the penitentiary beyond that. But if the man went
to the penitentiary on an armed robbery conviction on a ten to twenty-five, he
would put in a minimum of about six and a half years on that ten to twenty-five
before he could come up. But at the reformatory, the same person would put in
two and a half years on a ten to twenty-five before he’s considered.

However,
there isn’t any showing that this punishment provided by this statute is cruel
and unusual. It’s not an unusual—in fact, it provided for a fine or
imprisonment, or both. Now, the court could have fined her in addition to the
imprisonment sentence. And they have been claiming in the supreme court and in
this Court that this woman’s sentence, that the Court of Appeals refused to
review it. And that isn’t a fact at all. If you’ll look at the journal entry of
the court, the Court of Appeals journal entry, you’ll find that they said:
“Upon review of the entire case”—and this was one of the issues, that her
sentence was cruel and unusual—if you look at the journal entry, they hold that
punishment was within the exclusive jurisdiction of the trial court. In other
words, that the court, the trial court, had the discretion whether to give her
imprisonment or just a fine or both. So there was nothing cruel and unusual in
sentencing her. And that really was the—is to be concluded from the journal
entry of the court, because they said they reviewed the entire case. They didn’t
refuse to review the question of her sentence at all.

Your
Honors, we believe, the State of Ohio, that we have a right to rely on your
decision in the Wolf case and on your
decision in the Roth case, if there
is anything to the doctrine of stare
decisis; and that we also; the trial court had a right to rely on the Lindway decision in handling this matter
in the trial court, because the Lindway decision
is in line with your decision in the Wolf
case. And we respectfully submit that there has been no violation of any
constitutional right of the defendant in this case on the trial, by reason of
there having been no proper search warrant. We feel that that constitutional
provision does not cancel out evidence of a criminal offense, or does not
constitute a defense to the commission of a crime, whether the evidence is
found upon the person or found in the privacy of a home. And I don’t think that
if this obscene material was found upon her in the street and in her possession
and there had been no search warrant, that there would have been any difference
in the case. In other words, if she had been searched on the street and all
this obscene material was found, the constitutional provision against
unreasonable search and seizure also goes to the person as well as the home;
and the fact that it was found in her home without a search warrant or a proper
one—and on that issue, I want to correct something that I just remember Mr.
Kearns told you, that the prosecutor promised on the trial of this case that
she’d produce a search warrant. That isn’t so at all, and it’s not even in the
record. He had as much right, if he doubted that there was any—what this
Lieutenant White had, he had as much right to bring Lieutenant White in on
subpoena as the State. And it wasn’t incumbent on the State to offer any search
warrant as an exhibit, as an element of the crime to be proven. And that is
why, on the authority—in fact, in view of the Lindway decision, that’s why the court overruled the motion to
suppress the evidence.

THE COURT: Is the search
warrant in existence?

MRS. MAHON: Insofar as the
record is concerned, it doesn’t show any.

THE COURT: Is there any
record of it in the records as to whether—

MRS. MAHON: There’s no
record that there was a search warrant. The two officers who testified, who
were the only ones, Mr. Chief Justice, you find in the record who made this
particular search and found this evidence—they talk about twelve police
officers being there and surrounding the place and making the search. But the
only officers who turned up with this evidence were Sergeant Delau and the
patrolman who testified in this case. They had nothing to do with obtaining a
search warrant. When the defendant requested, told them to get one, the
officers said they waited and that Lieutenant White came out there. They
thought he had a search warrant. Now, that’s what the record shows.

MR. CHIEF JUSTICE WARREN:
All right, thank you.

MR. KEARNS: Do I have—

MR. CHIEF JUSTICE WARREN:
Yes, you have some time left, I think, Mr. Kearns.

REBUTTAL ARGUMENT OF A. L. KEARNS, ESQ., ON BEHALF
OF APPELLANT

MR. KEARNS: Thank you, Your
Honor.

To answer the question that
was asked pertaining to our supreme court’s ruling, on page 13 of our brief,
our supreme court has held:

Under our statute as now
worded, mere possession is forbidden even where the possessor does not have a
purpose of again looking at the books or pictures; and, in the instant case,
the jury could have found the defendant guilty and she could have been, as she
was, sentenced as a felon, even though it believed her evidence that she had
innocently acquired possession of these articles, had no intention of ever
looking at them again and was merely keeping them pending instructions for
their disposition from their owner.

Then they cite cases from
this Court.

Now, the charge of the
court to the jury, that portion of found on page 65of our record:

Number three: That the
defendant had in her possession and under her control the books, pictures and
photographs mentioned in the indictment. ‘Possession’ means the act or state of
detaining a thing; it is the act of holding or keeping it. Now, such detention
does not mean that it is necessary always to have in ones s sight the thing
possessed. For example, one who deposits articles in a place of concealment may
still be deemed to have them in his possession. To have something under one’s
control is to have the present right and power to do with it as one will.

So that the court actually
told the jury that under language of this statute the defendant in this cause
was guilty.

Now, a question arises as
to what should she have done these things after she discovered that they were
improper things to have in her possession. Now, our statute, Section
2909.01,reads as follows—

MR. KEARNS: The question
arose as to what this defendant-appellant could have done with these materials
after she found them. Now, we have Section 2909.01 of the Ohio statutes, which
reads as follows:

No person shall maliciously
destroy or injure property not his own.

Whoever violates this
section shall be imprisoned not less than one or more than seven years if the
value of the property destroyed, or [to which] injury is done, is One Hundred
Dollars or more ***

THE COURT: I suppose she
could have called the attention of the police to it, couldn’t she?

MR. KEARNS: Well, if she
called it to the attention of the police, she would still be in possession
under this statute.

THE COURT: Well, I guess
so.

MR. KEARNS: And if the
police were of the type that they were, and doing the things that they did and
they usually do in Cuyahoga County, using their badges as supreme authority,
they would have done the same thing, by prosecuting her.

I want to just say a word
or two in the language of our judges. Now:

In the opinion of Judges
Taft, Bell, Herbert, and Peck, the portion of Section 2905.34,Revised Code, upon which defendant’s
conviction was based (now, this is the majority opinion) is constitutionally
invalid, and, for that reason, the judgment of the Court of Appeals should be
reversed. However, Section 2 of Article IV of the Constitution of Ohio reads in
part:

No law shall be held
unconstitutional and void by the supreme court without the concurrence of at
least all but one of the judges, except in the affirmance of the judgment of
the Court of Appeals declaring the law unconstitutional and void.

Now, I just want to say a
word about the—reading second opinion of our Judge Herbert of the supreme he
said:

Although I concur in
paragraphs one and three of the syllabus, I must except from paragraph two,
which follows State versus Lindway, 131 Ohio State, [page] 166, ...
and the judgment. The facts are sufficiently stated in the majority opinion.

Section 14, Article I of
the Ohio Constitution, provides:

The right of the people to
be secure in their persons, houses, papers, and possession, against
unreasonable searches and seizures shall not be violated; and no warrant shall
is­sue, but upon probable cause, supported by oath or affirmation, particularly
describing the place to be searched, and the person and things to be seized.

The judgment in the Lindway case is not in conflict with
this constitutional provision. Had I been a member of this court at that time I
would have joined in the judgment as all the members of the court then did
because the evidence there clearly established that the defendant was operating
a bomb manufacturing shop in the basement of that house. As stated by [Judge]
Jones, . . . in the concurring opinion in that case—

THE COURT: May I ask you
what relevance that has to your point?

MR. KEARNS: The relevance
that it has to our point-

THE COURT: The State
constitutional provisions?

MR. KEARNS: The State
constitutional provision, as well as the Federal constitutional provision—

THE COURT: You were reading
from, I thought, the State -

MR. KEARNS: I was reading
from the State constitution provision—

THE COURT: Pardon me, I’m
sorry.

MR. KEARNS: —but it’s
practically a copy of our own Federal constitutional provision, which is the
same, that the people be secure in their homes against unlawful search and
seizure.

THE COURT: Yes, but you
were reading what the supreme court held with reference to its own State
constitutional provision.

MR. KEARNS: Not that they
held. This is the dissenting opinion, Your Honor. Judge Herbert, reading the
State constitutional provision, which is identical with the Federal
constitutional provision as to unlawful search and seizure.

But I just want to show
this Court—

THE COURT: That doesn’t
reach the question that you were asked about several times, and that is: Assume
what is asserted, that it would be illegal under the Federal Constitution, what
do you do with the Wolf case, because
that did justify holding it unconstitutional to admit evidence of the results
of the search, as it was made.

MR. KEARNS: Well, we feel
that in the Wolf case this Court did
not intend to make it a general matter or proposition of that sort, because of
the fact that there are such exceptions where, as in the Lindway case, where there is real criminality, where there is
violation of law knowingly, intentionally, and profitably, as in the case. In
this case, shall we have our constitutional rights denied when we do not
violate a law except, probably, looking at or reading, for the mental state,
the wrong type of literature.

THE COURT: Do you think
this comes within the doctrine of the Rochin
case?

MR. KEARNS: I think it
does, I think it does. I think it does. Here we have a situation, if it please
the Court, where there was absolutely no intent to violate the law, the public
could not be injured. We were speaking of the damage that narcotics may cause
by being in possession. That’s a matter of health; that’s a matter of the body.
Here we are trying to control the American mind as to what they shall read and
as to what they shall not look at.

THE COURT: What particular
acts bring it within the Rochin case?

MR. KEARNS: I can’t say
definitely, Your Honor. I’m very sorry, but I don’t have all of the facts in the
case, just the conclusion that I came to on that.

I want to thank the Court
very, very much for the opportunity of appearing before you.